The clarion. [volume] (Jackson, Miss.) 1883-1888, 1887-07-13
MEYER 4 Son,
MosLER, BAHAE & Co, use of w.
III. Warner.

V.
MosLER, BAHAE & Co, use of w.
III. Warner.
w. N. King, for the appellants.
E. Watkins, for the appellees.
COOPER, G. j., delivered the opinion of
the Court.
The record in this case comprises all
sorts of facts and suits. Aided by the
brief of counsel, we have, we think,
been successful in eliminating from con-
sideration so much of the record az has
relation to another suit which had been
brought by the present plaintiff against
the defendant, but which had been dis
missed before the institution of this ac-
ton.
1t seems that in 1882 firm of Hopper
& 10. bought of Warner "Mosler" iron
safe, and entered into a written con-
tract by which the title to the safe was
reserved to Warner until payment
should be made of the purchase price.
They then executed two notes each of
fifty dollars, payable to the Mosler Safe
and Lock Company, and in the notes
declared that the safe should be cOnsid-
cred as the property of that company
until the notes should be paid. Hopper
& Co. then sold the safe to Meyer Il Son.
Afterwards it was levied on under an
attachment against that firm, sued out
by one of their creditors. Meyer inter
posed claimants issue in that suit and
gave bond for the forthcoming of the
safe, after which that suit was removed
to the federal court, where it is yet pend
ing. Hopper & Co. not having paid
for the safe, this action, instituted as an
action of repleyin, was commenced by
Mosler, Bahan & Co., who sue for the
use of Warner, to recover possession of
the safe from Meyer. The officer to
whom the writ was directed, returned
that he had served it by ''leaving true
copy with Jacob Meyer" Upon this
return the plaintiff seems to have elect
ed to proceed with the action to recover
the value of the safe under section 2619
of the Code, which declares eff the re-
turn of the officer on the writ shall show
failure to take the goods and chattels,
but that the defendant has been sum-
moned, the plaintiff may declare, and
prosecute the action for the recovery of
the value of the property, and damages
for taking and detention, or for con-
version of the property, as if he had
thus commenced his action"
A Jury was waived and the case was
heard and determined by the court,
which rendered judgment in plaintiffs 8
favor for the sum of one hundred dol
lars. There may be ether reasons why
the Judgment should be reversed, but it
is sufficient 10 indicate two, either of
which is fatal to their action in its pres
ent form. 1t is well settled that an ac-
ton of replevin cannot be brought in
the name of one person for the use of
another, for the action involves nothing
but legal rights, and if equities are to
be settled another form of action must
be resorted to. The name of the usee
Therefore, may be treated as surplusage,
but recovery can only be had where it
| is shown that the plaintiff (nominal
plaintiff) is entitled to recover. Handtey
.. Buck1aer, S. & NJ, 20; Bro,on q.
Thomas, 2S Miss, 2S6; Lee .. Gardner,
Id, 251; Pearce u. Tt0itcheH, Al Miss,
344
In this suit it is manifest that Warner
had been treated as the real plaintiff by
all parties and by the court. What pos
sible interest or connection Mosier,
Bahan & Co. have with the suit or in
the property sought to be recovered, is
not shown. By the contract which ap-
| pears in the record, but not in the bill
of exceptions, it is provided that the
property in the safe should remain in
| Warner until payment of the purchase
price; by the notes given for the pur-
chase price it is agreed that the safe
should continue the property of the
Mosler Safe & Lock Company until pay
| ment should be made. Mosler, Bahan
& Co. are the only persons connected
with the litigation who have no sort of
interest in its subject matter; they have
casually dropped into the litigation
without any hope of gaining anything
by it; the sole purpose of their inter
vention seems to have been to lend their
approval and countenance to whoever
should be inclined to demand the prop
erty of the defendant. The usee's title
cannot be considered in this action, and
since the plaintiffs have none it must
fail. A second reason why the judg-
ment is erroneous is that nothing ap-
pears of record which entitled them to
abandon the action as one in replevin
and proceed to recover the value of the
safe. The return of the officer does not
| show "a failure to take the goods" it
does not show whether he seized the safe
or made any effort 50 to do. 1t was
never contemplated by the statute that
q plaintiff should sue out writ of
repievin and abandon it as such without
cause, and go for the value of the prop
erty demanded. The object of the law
is to prevent a failure of justice by the
action of the defendant in secreting or
refusing to deliver the property sued
for on proper demand being made by
the officer therefor. 1t is not sufficient
to Justify such change of remedy that
the officer without making any effort to
properly perform his duty contents him
self with handing q copy of the writ to
the defendant. On both the grounds
indicated, the action must fail
The Judgment is reversed and cause
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